Opinion
DOCKET NO. A-3313-14T2
01-20-2017
JOANNE RIPLEY, INDIVIDUALLY and as GUARDIAN OF MICHAEL RIPLEY, a minor, Plaintiff-Appellant, v. CHARLES J. SCHMIDT, Defendant-Respondent, and MONTVILLE TOWNSHIP, Defendant.
Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the briefs). Stephen A. Rudolph argued the cause for respondent (Rudolph & Kayal, P.A., attorneys; Mr. Rudolph, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1621-10. Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the briefs). Stephen A. Rudolph argued the cause for respondent (Rudolph & Kayal, P.A., attorneys; Mr. Rudolph, on the brief). PER CURIAM
On September 29, 2006, plaintiff Michael Ripley, then thirteen years old, sustained serious injuries while riding his bicycle in Montville when he was struck by a vehicle operated by defendant Charles J. Schmidt. In May 2010, suit was filed on plaintiff's behalf against defendant alleging negligence. The case went to trial in 2015. In addition to jury instructions on defendant's duty of care, the trial court instructed the jury, over plaintiff's objection, that plaintiff had the same duty of care as a motorist making a left-hand turn across traffic. The jury subsequently found defendant was not negligent. Plaintiff timely moved for a new trial, specifically challenging the jury instruction on his duty of care. The trial court denied plaintiff's motion. Plaintiff now appeals the trial court's instruction on his duty of care and its denial of his motion for a new trial. After reviewing the record and applicable law, we affirm.
I.
We derive the following facts from the trial record. On the date of the accident, plaintiff and his friend of the same age, Peter, were playing at the local recreation center in Montville. At approximately 5 p.m., the two boys left the center, riding their bicycles to Peter's home for dinner. Plaintiff's memory "drops off" at this point. Peter testified they left the recreation center on their bikes, heading northbound along Changebridge Road, riding in a single file with Peter in the lead. Peter estimated the ride between the recreation center and his home took "a minute." He did not see the accident occur. To reach Peter's home, plaintiff and Peter would need to cross to the other side of Changebridge Road, as Peter's home was on the road's southbound side.
We use a pseudonym to protect the witness's privacy. --------
On the afternoon of the accident, defendant attended a meeting of the local library board. The meeting finished shortly before 5 p.m., and defendant started to drive home, heading north along Changebridge Road. Defendant lived in Montville for approximately thirty years, so he was familiar with Changebridge Road. At that time, Changebridge Road had one travel lane in each direction, with a painted white line delineating a narrow paved shoulder strip.
When defendant first saw plaintiff and Peter riding along the road, he was travelling at approximately forty miles per hour. As defendant approached plaintiff, he slowed his vehicle to approximately thirty-five miles per hour and shifted toward the left side of the northbound travel lane. According to defendant, he saw plaintiff riding to the right of the white shoulder line, then all of the sudden, plaintiff was right in front of his vehicle. Defendant hit his breaks "a second" before impact, and then saw plaintiff "come up onto the hood of my car." The impact occurred directly in front of Peter's home.
At trial, defendant did not object to the testimony of plaintiff's accident reconstruction expert, James Eastmond, a former police officer based in North Carolina. Eastmond did not personally travel to the accident site, but instead had an associate take pictures and measurements of the scene. In performing his calculations, Eastmond assumed defendant was travelling thirty-five miles per hour. He further assumed, based upon the police report, that defendant applied his brakes approximately twenty-three feet before impact and continued to travel twenty-three feet after impact. He further estimated it took plaintiff less than one second to go from the shoulder area to the point of impact; notwithstanding this estimation, Eastmond concluded that defendant had enough time to brake and avoid striking plaintiff.
Plaintiff did not object to the trial testimony of defendant's accident reconstruction expert, William Martin, a retired police officer based in Philadelphia. Martin testified defendant was between forty and seventy-eight feet away when plaintiff entered defendant's path. Martin concluded that plaintiff made a left turn from the northbound shoulder and his bike was traveling straight across the street, "almost perpendicular" to defendant's vehicle, at the moment of impact. Martin based his opinion on the damage pattern to the front of defendant's vehicle, as well as the fact that plaintiff's momentum (in riding from right-to-left in front of defendant's vehicle) caused him to end up in the opposite, south-bound lane of Changebridge Road.
After closing arguments, the court instructed the jury on the law, including the duty of care owed by each party. Plaintiff objected to a jury instruction regarding his duty in making a left-hand turn, asserting no direct evidence showed he was turning left at the time of the accident.
Over plaintiff's objection, the trial court instructed the jury with respect to plaintiff's duty in making a left-hand turn. In pertinent part, the judge instructed the jury,
When you make a left hand-turn on route, if you find that Michael was making a left-hand turn, since it involves a movement across the path of other traffic[,] the risk is ordinarily increased beyond that which exists when a motor vehicle is proceeding, or a bicycle is proceeding, along a direct course. Hence, with respect to a left turn, a person would seek an opportune moment for the turn and would exercise an increased amount of care in proportion to the increased danger.The court also provided the following instruction based upon N.J.S.A. 39:4-14.2:
[E]very person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable [;] however, that . . . person may move to the left in order to make a left hand turn from the road[,] [w]hen it's a single-lane road if you're in that single lane.The court further instructed the jury that no person shall turn "without giving an appropriate signal . . . in the event any other traffic may be affected by such movement." See N.J.S.A. 39:4-126. The court also instructed the jury to take into account plaintiff's age and maturity when determining fault.
After deliberating, the jury completed the verdict sheet answering only question one; by a 7-1 vote, the jury found defendant was not negligent. As instructed, the jury did not reach the remaining five questions on proximate cause and plaintiff's negligence.
II.
In Washington v. Perez, 219 N.J. 338 (2014), our Supreme Court articulated the standard of review for challenging jury instructions in civil cases.
Appellate review of a challenged jury instruction entails not only scrutiny of the charge itself, but an inquiry as to whether an erroneous charge may have affected the trial's result. Notably, "in construing a jury charge, a court must examine the charge as a whole, rather than focus on individual errors in isolation." "As a general matter, [appellate courts] will not reverse if an erroneous jury instruction was 'incapable of
producing an unjust result or prejudicing substantial rights.'" However, erroneous jury instructions "constitute[] reversible error where the jury outcome might have been different had the jury been instructed correctly." "Generally, erroneous instructions on material points are presumed to be reversible error."
[Id. at 351 (citations omitted).]
Review of jury instructions is a two-step process. First, this court must determine whether an error actually occurred. "In civil matters, the trial court should give an instruction that appropriately guides the jury on the legal basis of a plaintiff's claim or a defendant's affirmative defense, so long as there is a reasonable factual basis in the evidence to support that claim or defense." Walker v. Costco Wholesale Warehouse, 445 N.J. Super. 111, 120 (App. Div. 2016) (citations omitted). "Jury charges 'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . .'" Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (citations omitted). Second, this court must determine whether that error "may have affected the trial's result." Walker, supra, 445 N.J. Super. at 120 (quoting Washington, supra, 219 N.J. at 351).
In this case, plaintiff maintains the court inappropriately used Model Jury Charge (Civil), 5.30C, "Left-Hand Turn" (1991), because N.J.S.A. 39:4-123 does not apply to bicyclists. However, according to N.J.S.A. 39:4-14.1(a), "[e]very person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by chapter four of Title 39." See also Schomp v. Wilkens, 206 N.J. Super. 95, 99-102 (App. Div. 1985) (concluding a bicyclist's violations of Title 39 could be charged to the jury as evidence of negligence). The left-hand turn charge therefore applies to bicyclists.
Plaintiff maintains the left-hand turn charge was inappropriate because the accident did not occur at an intersection. Plaintiff correctly states the left-hand turn charge is appropriate for issues arising under N.J.S.A. 39:4-123, which only applies to turns occurring at intersections. However, the left-hand turn charge is also appropriate for issues arising under N.J.S.A. 39:4-126, which specifically addresses turns or movements that do not occur at intersections. The trial judge's instruction, stating "no person shall turn a vehicle from a direct course or move right of left upon a highway unless and until such movement can be made with safety," is nearly identical to the language used in N.J.S.A. 39:4-126. We are satisfied the left-hand turn charge was appropriate here.
Plaintiff contends Rudy v. Thompson, 186 N.J. Super. 359 (App. Div. 1982), stands for the proposition that travelers only owe a duty of care to oncoming traffic, so plaintiff did not owe a duty of care to defendant approaching from behind. This argument ignores both N.J.S.A. 39:4-126 and McGowan v. Barry, 210 N.J. Super. 469, 473-74 (App. Div. 1986). McGowan explicitly rejected Rudy's conclusion that a driver only owed a duty of care to oncoming traffic. Id. at 473. We wrote, "[A] motorist is required to make such observations for traffic and vehicles, which are or may come into his path of travel, as a reasonably prudent person would make." Ibid. (citing Greenfield v. Dusseault, 60 N.J. Super. 436, 441 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). McGowan thus established travelers owe a duty of care to everyone who may cross their path, not just oncoming traffic.
Next, plaintiff asserts the evidence was insufficient for the jury to find plaintiff was making a left-hand turn when the accident occurred. We disagree. The record contains sufficient facts to support the left-hand turn charge. Although plaintiff could not remember the accident or whether he made a left turn, circumstantial evidence permitted inferring he was crossing the road when defendant hit him. Plaintiff testified he was travelling to Peter's home for dinner. The accident occurred on Changebridge Road in front of Peter's home. According to defendant's expert, plaintiff was "almost perpendicular" to defendant's vehicle, at the moment of impact. The trial court properly concluded, "There is evidence from which the jury could find [plaintiff] turned left." Based on the "reasonable basis in the evidence," a jury could infer plaintiff was engaged in a left turn toward his intended destination at the time of the collision, warranting the left-hand turn charge. Walker, supra, 445 N.J. Super. at 121.
Next, plaintiff asserts the trial court's jury instructions were inappropriate because the jury could have found plaintiff was not travelling on the "roadway." Plaintiff's argument is contrary to the record. In fact, plaintiff's expert testified plaintiff "entered the roadway . . . where impact occurred."
Separate from challenges to the left-hand turn charge, plaintiff asserts charging the jury regarding N.J.S.A. 39:4-14.2 and N.J.S.A. 39:4-126 also constituted reversible error. N.J.S.A. 39:4-14.2 requires "[e]every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable." Plaintiff's arguments on those points merely rephrase his meritless arguments challenging the appropriateness of the left-hand turn charge. We reject them for the same reasons.
In short, plaintiff's claims of error regarding the trial court's left-hand turn charge lack merit. "The requested instruction generally should be given, as long as there is a reasonable basis in the evidence to support the predicate factual contention that can trigger the charge, in light of the proofs and all reasonable inferences that may be drawn from those proofs." Walker, supra, 445 N.J. Super. at 121 (citations omitted). The evidence adequately supported the left-hand turn charge. Importantly, the left-hand turn charge also addressed the proximate cause of the accident. Had the jury found defendant negligent, it would have then proceeded to answer the remaining questions on the verdict sheet and considered whether plaintiff's actions contributed to the accident. Because the jury concluded defendant was not negligent, it never considered plaintiff's alleged negligence. Therefore, even if the trial court improperly issued the left-hand turn charge, its error would have been harmless. See R. 2:10-2.
Lastly, when examining the denial of a motion for a new trial, this court may not reverse the trial ruling "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Because we conclude the trial court did not err when it charged the jury on plaintiff's duty of care, we also conclude the trial court properly denied plaintiff's motion for a new trial on that basis.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION